Federal Supreme Court reverses procedural acts in the Mari Ferrer case and orders return to origin
The Federal Supreme Court (STF) recognized, in a plenary session this Thursday, the invalidity of the investigation hearing regarding the Mariana Ferrer case. The unanimous decision also covers other subsequent procedural acts, such as the sentence and ruling that had previously resulted in the acquittal of André de Camargo Aranha, the defendant in the case.
In light of the Court’s verdict, the judicial controversy will return to its initial stage of investigation, to be conducted in the first instance.
All Supreme Court ministers followed the understanding of the case’s rapporteur, Minister Alexandre de Moraes.
Although minister Cristiano Zanin declared himself unable to vote specifically in the specific case, he actively participated in the formulation of the thesis of general repercussion. This thesis is crucial and will define the guidelines for future processes that address evidence in sexual crimes and that involve the violation of victims’ fundamental rights, adding significant value to the national legal scenario.
The thesis of general repercussion established by the STF details the principles that should guide the conduct of processes involving sexual crimes and the protection of victims. The main points are:
- Evidence obtained at any stage of the criminal prosecution of sexual crimes will be considered null and void if the fundamental rights of the victim are disrespected, such as their dignity, honor, intimacy and psychological integrity. This applies to omissive or commissive conduct by the judge and other participants in the process, extending to all evidence and procedural acts directly derived from them, in accordance with article 5, item LVI, of the Federal Constitution.
- In these situations, nullity can be declared on the initiative of the court, at the request of the Public Prosecutor’s Office or by the victim himself, following article 565 of the Code of Criminal Procedure.
- An acquittal sentence that is based on solid and independent evidence from the victim’s testimony will not be automatically annulled.
- It is mandatory to determine the disciplinary, civil and criminal responsibilities of those who fail to comply with the guidelines in article 400-A of the Criminal Procedure Code.
- Instruction hearings in cases of sexual crimes, with the consent of the victim, must be recorded and attached to the records, with a guarantee of confidentiality.
Remembering the history of the Mariana Ferrer case
In 2018, Mariana Ferrer filed a rape complaint against businessman André de Camargo Aranha. The accused was initially acquitted in the first instance due to lack of evidence, with this decision later being upheld by higher courts.
In 2024, the Sixth Panel of the Superior Court of Justice (STJ) confirmed the businessman’s acquittal and denied a request to cancel the investigation hearing in which Mariana Ferrer was heard. The panel concluded, unanimously, that the allegation of nullity had been presented late and that a possible review would require re-examining evidence, something prevented by Precedent 7.
When appealing to the Federal Supreme Court, the victim’s defense argued that her testimony did not receive due consideration. This occurred despite the presence of several pieces of evidence, such as an expert report that confirmed the sexual relationship, the existence of the accused’s genetic material and reports indicating that she was in a vulnerable situation.
The analysis of minister Alexandre de Moraes as rapporteur of the process
Minister Alexandre de Moraes, responsible for reporting the case, voted for the illegality of Mariana Ferrer’s testimony during the investigation hearing and for the annulment of all subsequent procedural acts.
For the rapporteur, the hearing procedure violated the fundamental rights of the victim, who faced humiliation, sexist comments and an aggressive posture from the defense. He highlighted the lack of adequate intervention on the part of the magistrate and the Public Prosecutor’s Office to curb such abuses.
Specifically in the context of the case under analysis, Moraes declared that “there is no doubt” that the hearing proved to be humiliating and harmful to Mariana Ferrer’s rights.
According to the minister, the victim was subjected to a process of revictimization, characterized by cruel and inhumane treatment. Furthermore, there was a flagrant violation of their dignity, honor, intimacy, privacy and psychological integrity.
The minister emphasized the particular importance of the victim’s word in sexual crimes, highlighting that, although it must be considered with other evidence, if the testimony is obtained under constraint, humiliation or restriction, it becomes illicit evidence, under the terms of article 5, item LVI, of the Federal Constitution.
Moraes pointed out that this irregularity directly impacted the progress of the process. Both the first instance sentence and the ruling of the Court of Justice of Santa Catarina were repeatedly based on the victim’s testimony to justify the insufficiency of evidence.
In the rapporteur’s assessment, previous decisions recognized signs of materiality and authorship of the crime. However, the defendant’s acquittal was based on doubts about the dynamics of the facts and the vulnerability of the victim, using as a basis evidence produced in a flawed manner.
The rapporteur also made a connection between the case and the recent jurisprudence of the STF, which aims to protect women victims of violence. He mentioned decisions related to the legitimate defense of honor and revictimization in crimes against sexual dignity, reinforcing that the magistrate has the duty to prevent unconstitutional practices during hearings, under penalty of liability.
Concluding his vote, Moraes accepted the extraordinary appeal with an appeal to declare the nullity of the investigation hearing and all subsequent procedural procedures, including the sentence and the ruling.
The minister ordered that the files be sent back to the Santa Catarina Judiciary. There, a new instruction must be carried out, with the participation of a judge and a member of the Public Ministry who did not act in the previously annulled act.
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With the aim of establishing a precedent of general repercussion, Moraes proposed the following thesis that will serve as a guide for future cases:
- According to article 5, item LVI, of the Federal Constitution, evidence that results from disrespect, whether by action or omission, of the victim’s fundamental rights, is considered inadmissible and, consequently, null and void. Especially its dignity and honor, on the part of the magistrate and other procedural participants, during the conduct of investigative acts in sexual crimes cases. This nullity extends to all other evidence and procedural acts that directly derive from it.
Minister Flávio Dino’s considerations on the thesis
Minister Flávio Dino agreed with the rapporteur, Alexandre de Moraes. He declared that there was no doubt about the illegality of the evidence obtained during the hearing.
However, Dino considered that the nullity of a process should not be an automatic consequence of the existence of illicit evidence. It is essential to verify whether the irregularity actually influenced the investigation of the essential truth and the final decision of the case.
For Dino, the central legal basis for this discussion is article 566 of the Criminal Procedure Code, which establishes that the nullity of a procedural act will not be declared if it has not impacted the search for substantial truth or the outcome of the trial.
In the case in question, the minister stated that the cancellation of the hearing directly affected the judge’s perception and the analysis of the evidence.
Dino highlighted the existence of evidence such as an expert report that indicated recent sexual intercourse, the recent hymenal rupture and the presence of the accused’s genetic material on the victim’s clothes. In his assessment, these elements were not properly considered due to the way in which the oral evidence was collected.
The minister highlighted, however, that the return of the case to the Santa Catarina Court does not constitute a condemnatory decision by the STF. According to him, this is a constitutional judgment on the implications of the nullity of evidence, and it is up to the new magistrate responsible for the case to exercise his free motivated conviction.
By joining the rapporteur’s vote, Dino suggested a modification to the thesis. Its objective was to make it clear that an acquittal sentence that is supported by sufficient evidence independent of the victim’s testimony should not be automatically invalidated.
He also proposed that the thesis include the obligation to investigate the civil, criminal and disciplinary consequences arising from abuses committed during the hearing.
Violation of fundamental constitutional principles
Minister Luiz Fux agreed with the decision to cancel the hearing. However, from his perspective, the main issue is not strictly framed as illicit evidence.
For the minister, what happened was the holding of a hearing that contradicted both constitutional principles and infra-constitutional norms. These rules guarantee the dignity of the human person and regulate the appropriate conduct of procedural acts.
Fux emphasized that the judicial process must be conducted, disciplined and interpreted in accordance with the fundamental values and guidelines of the Federal Constitution.
He also made reference to provisions of the Code of Civil Procedure that impose good faith on everyone involved in the process and that determine the judge’s role in safeguarding and promoting the dignity of each individual.
The minister also highlighted that it is the magistrate’s prerogative and duty to exercise police powers during the hearing. In the specific case, Fux assessed that this obligation required the judge to intervene at a time when the limits of dignified and respectful treatment owed to the parties were exceeded.
In his view, the judicial environment requires acceptance. This is because simply appearing in court can cause significant psychological damage to the people involved in the process.
When commenting on the performance of the magistrate who conducted the hearing in question, Fux expressed his surprise at the passivity shown in the face of the aggression suffered by the victim.
Cármen Lúcia: “Where prejudice speaks, justice remains silent”
Minister Cármen Lúcia also followed the rapporteur’s vote. She said the heart of the case reveals a deep “Brazilian wound”: deep-rooted prejudice against women.
According to the minister, in situations where prejudice prevails, Justice, unfortunately, remains silent.
